REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1617 OF 2011
Asar Mohammad and Ors. …..Appellant(s)
:Versus:
The State of U.P. ....Respondent(s)
J U D G M E N T
A.M. Khanwilkar, J.
1. This appeal emanates from the judgment and order passed
by the High Court of Judicature at Allahabad dated 30th July,
2009 in Criminal Appeal No.1631 of 2008, whereby the High
Court upheld the conviction recorded against the appellants for
an offence punishable under Section 302 of the Indian Penal
Code (IPC) but converted the sentence of death into
imprisonment for life with fine, and confirmed the conviction
under Section 201 of the IPC and sentence of 2 years’
imprisonment and fine, as awarded by the Additional Sessions
Judge/Special Judge, J.P. Nagar in Sessions Trial No.155/2004.
2. Briefly stated, one Shababul (PW7) gave information to the
Police Station, Dedoli on 24th January, 2004 about one Zahida
Begum, the second wife of appellant No.3, Akhtar Mohammad,
son of Munshi, and their son Ishlam (aged about 11 years) who
had gone missing from the village for the last two months,
despite which their family members had not reported the matter
to the police. The appellant Nos.1 and 2, Asar Mohammad and
Asraf Mohammad respectively, are the two sons of appellant No.3
Akhtar Mohammad, from his first wife. Thus, deceased Zahida
Begum is the step mother of appellant Nos.1 & 2, Asar
Mohammad and Asraf Mohammad. On the basis of the
aforementioned report, the Head Constable Surendra Singh (PW10),
who was posted as Head Moharrar, made an entry in GD
No.32 (Ext. Ka17). Acting on that report, PW9 Virendra Kumar
Tyagi, Station House Officer of Police Station, Dedoli, visited the
village along with SI Doonger Singh Verma (PW6), Mangey Ram
Tomar, Nath Prakash Gupta, Constable Asqar Ali and SSI
Harendra Singh (PW4). On enquiries with Asar Mohammad
(appellant No.1/accused No.1), he disclosed that Zahida was his
step mother and her son Ishlam was his step brother. He
confessed that he, along with the other two appellants committed
the murder of both Zahida and Ishlam and thereafter, dumped
their dead bodies into the septic tank in the backyard of their
house. He then led the police party to the septic tank and
removed the lid with the help of Mangat and Jagadish Valmiki
(PW8), wherefrom the dead bodies were taken out. The dead
bodies were highly decomposed and virtually reduced to
skeletons. The body of Zahida Begum was found tied with nylon
cord (Ext. Ka18). Thereafter, the memo of recovery of the dead
bodies was prepared by Harendra Singh (PW4). SI Doongar
Singh Verma (PW6) conducted the inquest and gave the inquest
report. He also prepared the necessary papers concerning the
dead bodies and drew a site plan of the place of recovery
(Ext.Ka19). The dead bodies were then dispatched for postmortem
examination on the next day, i.e. 25th January, 2004.
The Investigating Officer then recorded the statement of the
inquest witnesses and proceeded to arrest Asraf Mohammad
(appellant No.2/accused No.2), whose statement was recorded on
the same day. The statements of Begum Banu (PW1) and Akram
were recorded on 26th January, 2004. The appellant No.3
Akhtar came to be arrested on 10th February, 2004. The postmortem
of the dead bodies was conducted by Dr. Kuldeep Singh
(PW5) who noted that the body of Zahida Begum inter alia had
fracture of Hyoid bone and Hyoid Cartilage which, in his opinion,
was the cause of death due to asphyxia (fracture of Hyoid bone
and Thyroid Cartilage) and that the death had occurred more
than one month back. With regard to the dead body of Ishlam, he
inter alia noted that the cause of death was due to asphyxia
(fracture of Hyoid bone). After completion of the investigation,
chargesheet (Ext. Ka21) was submitted before the jurisdictional
Court on 11th February, 2004. The said Court committed the case
to the Sessions Court at J.P. Nagar where it was registered as
Sessions Trial No.155/2004. The Sessions Court on 5th August,
2004 framed charges against the appellants as under:
“Charges
I, Mushaffey Ahmad, Addl. Sess. Judge, hereby charge
you, Asar Mohammad, Asraf and Akhtar as follows:
That you on two months ago from 24.1.2004 (date of
information to the PS) at 1 am in the village of Panyati within
the limits of PS Didopli Distt. J.P. Nagar committed murder by
intentionally or knowingly causing the death of Smt. Zahida
and Ishlam and thereby committed an offence punishable under
Section302 IPC and within the cognizance of this court of
session.
That you on above date, time and place having the reason
to believe that certain offence to with murder punishable with
death has been committed, did cause certain evidence of, the
said offence, to disappear, to with threw the dead bodies of
victims, into gutter with the intention of screening the said Asar
Mohammad, Asraf and Akhtar from legal punishment, and
thereby committed an offence punishable u/s 201 of the Indian
Penal Code and within the cognizance of this court of Sessions.
And I hereby direct that you be tried on the said charge of
this court of session.”
3. The prosecution examined 10 witnesses, namely, PW1
Begum Bano, PW2 Haji Iqbal, PW3 Nawab Jan, PW4 Harendra
Singh, PW5 Dr. Kuldeep Singh, PW6 Doonger Singh Verma,
PW7 Shababul, PW8 Jagdish, PW9 V.K. Tyagi and PW10
Surendra Singh. The defence of the accused was of total denial.
They did not produce any evidence. The Sessions Court, after
evaluating the entire evidence on record, eventually found that
even though it was a case of circumstantial evidence, the
prosecution had succeeded in establishing the guilt of the
accused beyond all reasonable doubt and found them guilty of
offences under Sections 302 and 201 of the IPC. As aforesaid, the
Sessions Court vide judgment and order dated 1st March, 2008
awarded the death sentence with fine, for having committed the
offence under Section 302 of IPC, and 2 years of imprisonment
with fine in respect of offence under Section 201 of IPC to each of
the appellants.
4. All the three appellants carried the matter in appeal before
the High Court, being Criminal Appeal No.1631 of 2008, which
was heard along with the death reference received by the High
Court, being Reference No.3 of 2008. The High Court
reappreciated the evidence on record and affirmed the view taken
by the Trial Court, after referring to the relevant decisions cited
before it. In conclusion, the High Court observed as follows:
“27. We have scrutinized the submission of learned Counsel for
the appellants and also decision of the Apex Court in the case of
Aloke Nath Dutta (supra) in all its ramifications. Having gone
through the decision, we must say that the said decision has
been rendered in different facts and circumstances and flows
from different perspective. In the said case, the Apex Court had
rendered verdict acquitting other accused persons holding
quintessentially that there was no direct evidence from which it
could be deduced that other appellants also were part of the
said conspiracy and that their presence had not been noticed by
any of the witnesses and further that nobody saw them together
in the house and also that no body saw Mrinal Dutta coming to
the house even once. In the said decision accused were
acquitted under section 120B I.P.C. In the present case the
accused persons were residing in the same house and they
were very proximate relation of the deceased. Therefore, the
facts of the said case cannot be imported for application to the
facts of the present case.
28. We have carefully scanned the evidence on record. In the
facts and circumstances and evidence on record, it brooks
no dispute that the prosecution has proved beyond
reasonable doubt that the deceased died homicidal death.
The doctor has clearly held that cause of death of Zahida
Begum was due to Asphyxia (fracture of Hyoid bone and
Thyroid cartilage) and the death of Islam was also due to
Asphyxia (fracture of Hyoid bone). The prosecution has
proved its case beyond reasonable doubt. Another
circumstance unerringly pointing to the guilt of the
accused is that, the dead bodies were recovered from the
septic tank situated inside the house of appellant that too,
on the pointing out of Asar Mohammad. PW3 Nawab Jan
and PW8 Jagdish minced no words to say that dead bodies
were recovered on the pointing of Asar Mohammad from
septic tank, There is no dispute about the identity of the
deceased. Yet another circumstance pointing accused finger
at the appellants is that the appellants did not lodge any
report about the missing of the deceased for about two
months nor offered any explanation about their death in
their statement under section 313 Cr.P.C….”
(emphasis supplied)
The High Court, however, noted that the facts and circumstances
of the present case would not come within the purview of a rarest
of rare case, for which reason it did not confirm the sentence of
death awarded to the appellants. The High Court, instead,
commuted the sentence to life imprisonment for offence under
Section 302 of the IPC. Thus, the appeal filed by the appellants
was partly allowed to that extent and the reference came to be
rejected vide the impugned judgment and order dated 30th July,
2009.
5. Feeling aggrieved, the appellants have filed the present
appeal. The principal argument of the appellants is that although
it is a case of concurrent finding of facts recorded by the two
Courts below, the same is replete with manifest errors and
cannot stand the test of judicial scrutiny. It is submitted that the
evidence produced by the prosecution falls short of the quality
evidence required for recording a finding of guilt against the
accused in a case of circumstantial evidence. In that, the motive
behind the commission of crime has not been established at all.
No evidence is forthcoming in respect of identification of the two
dead bodies, much less to establish the fact that it was of none
other than the second wife of appellant No.3 and son of appellant
No.3 respectively. It is vehemently contended that the police has
set up PW7 as the informant, who was an obliging informant of
the police. If his evidence is to be discarded, the genesis of the
prosecution case must collapse and, in which case, the rest of
the circumstances or the evidence would be of no avail. It is
submitted that even the other reports prepared by the police
purportedly during the investigation of the crime, were tailored to
suit the prosecution case. That ought to be discarded. It is
submitted that the evidence produced by the prosecution, taken
as a whole or even in part, by no stretch of imagination
establishes the complicity of the appellants in the commission of
crime. The hypothesis on which the prosecution case rests is
unsubstantiated. Further, the statement of the accused allegedly
made to the police, which is the fulcrum of the prosecution case,
is inadmissible in evidence and, at any rate, cannot be used
against the coaccused. For all these reasons, the finding of guilt
recorded against the appellants cannot be sustained either on
facts or in law.
6. The learned counsel for the State, however, supported the
judgment under appeal and would submit that no interference is
warranted against the concurrent findings of fact. He submits
that the prosecution has established the circumstances and the
chain is complete in all respects, pointing towards the
involvement of the appellants in commission of the crime and
ruling out any other possibility. He submits that the appeals
deserve to be dismissed.
7. We have heard Mr. S. K. Bhattacharya, learned counsel for
the appellants and Mr. Rajesh K. Singh, learned counsel for the
respondent. We have perused the entire record, including the
original record.
8. Before proceeding to consider the rival submissions, be it
noted that in the present case, no direct evidence has been
produced by the prosecution regarding the involvement of the
appellants in the commission of the crime. The prosecution rests
its case solely on circumstantial evidence. The legal position as
to how such matter should be examined has been expounded in
Padala Veera Reddy Vs. State of Andhra Pradesh and Ors.1
in the following words:
“10. ….. This Court in a series of decisions has consistently held
that when a case rests upon circumstantial evidence such
evidence must satisfy the following tests:
(1) the circumstances from which an inference of guilt
is sought to be drawn, must be cogently and firmly
established;
(2) those circumstances should be of a definite
tendency unerringly pointing towards guilt of the
accused;
(3) the circumstances, taken cumulatively, should
form a chain so complete that there is no escape
from the conclusion that within all human
probability the crime was committed by the accused
and none else; and
(4) the circumstantial evidence in order to sustain
conviction must be complete and incapable of
explanation of any other hypothesis than that of the
guilt of the accused and such evidence should not
only be consistent with the guilt of the accused but
should be inconsistent with his innocence. (See
Gambhir v. State of Maharashtra2
.)
11. See also Rama Nand v. State of Himachal Pradesh3
,
Prem Thakur v. State of Punjab4
, Earabhadrapa alias
Krishnappa v. State of Karnataka5
, Gian Singh v. State of
Punjab6
, Balwinder Singh v. State of Punjab.
7
”
9. In Mulakh Raj & Ors. Vs. Satish Kumar & Ors.8
, the
Court succinctly restated the legal position in paragraph 4 as
1
(1989) Supp. (2) SCC 706
2
(1982) 2 SCC 351 ; AIR 1982 SC 1157
3
(1981) 1 SCC 511 ; AIR 1981 SC 738
4
(1982) 3 SCC 462 ; (1983) 1 SCR 822 ; AIR 1983 SC 61
5
(1983)Cri LJ 846 ; (1983) 2 SCC 330
6 1986 Supp (1) SCC 676 ; AIR 1987 SC 1921
7
(1987) 1 SCC 1 ; AIR 1987 SC 350
8
(1992) 3 SCC 43
under:
“4. ……Undoubtedly this case hinges upon circumstantial
evidence. It is trite to reiterate that in a case founded on
circumstantial evidence, the prosecution must prove all the
circumstances connecting unbroken chain of links leading
to only one inference that the accused committed the
crime. If any other reasonable hypothesis of the innocence
of the accused can be inferred from the proved
circumstances, the accused would be entitled to the
benefit. What is required is not the quantitative but
qualitative, reliable and probable circumstances to
complete the chain connecting the accused with the crime.
If the conduct of the accused in relation to the crime
comes into question the previous and subsequent conduct
are also relevant facts. Therefore, the absence of ordinary
course of conduct of the accused and human probabilities
of the case also would be relevant. The court must weigh
the evidence of the cumulative effect of the circumstances
and if it reaches the conclusion that the accused
committed the crime, the charge must be held proved and
the conviction and sentence would follow.”
(emphasis supplied)
10. Let us revert to the circumstances which commended to the
trial court and also the High Court to take the view that the
chain of proved circumstances left no manner of doubt that the
accused alone were involved in the commission of the offence in
question. Those proved circumstances can be delineated as
follows :
(i) Information regarding the missing persons (Zahida
and Ishlam) was given by the village watchman, viz.,
Shababul (P.W.7).
(ii) The fact that the two named persons had gone missing
for about two months was reinforced after the police
visited the village to verify the same and in particular
the “admission of accused Asar Mohammed
(appellant No.1)” that the two missing persons have
been murdered by him and the other two accused, viz.,
Asraf Mohammed and Akhtar (appellant Nos.2 and 3
respectively) and “their dead bodies were dumped by
him in the septic tank in the backyard of their house.”
(iii) No ‘missing report’ was lodged by the appellants in
respect of Zahida and Ishlam, for reasons best known
to them.
(iv) Appellant No.1 told the police that he would show the
place where the dead bodies were dumped and he led
the police party to that spot in the backyard of the
house of the appellants, which was within his
exclusive knowledge and opened the lid of the septic
tank himself to facilitate taking out the two dead
bodies which he admitted as that of Zahida and
Ishlam.
(v) One of the two dead bodies recovered from the septic
tank in the backyard of the house of the appellants
was of a full grownup female around 32 years of age
and another of a male child of about 11 years of age
which corresponded with the age of Zahida and Ishlam
respectively.
(vi) The dead bodies were dumped more than one month
before the same were removed from the septic tank in
a highly decomposed condition.
(vii) Antemortem injuries were noticed on the vital part of
the neck on both the dead bodies which, according to
the medical evidence, was the cause of death due to
asphyxia and a case of homicidal death.
(viii) The accused neither disputed the identity of the two
dead bodies being that of Zahida and Ishlam nor
offered any explanation, even though they were
confronted with the incriminatory evidence.
(ix) No evidence has been produced nor any explanation
has been offered by the accused regarding the reason
as to why they did not lodge a ‘missing
complaint/report’ in respect of Zahida and Ishlam,
who were closely related to them and were staying in
the same house; nor have they produced any evidence
that both of them were still alive and were residing
elsewhere. Similarly, no explanation has been offered
by them regarding the cause of death of Zahida and
Ishlam, or for that matter, the circumstances in which
their dead bodies were found in the septic tank in the
backyard of their house and also about the antemortem
injuries noticed on the vital part of the dead
bodies which, as per the medical evidence, was the
cause of death due to asphyxia.
11. The trial court as well as the High Court, after analysing the
evidence on record including the evidence of PWs 4 to 10, had
discerned the above circumstances pointing towards the
involvement of the accused in the commission of the crime. Both
the courts have taken note of the fact that Begum Bano (PW1);
Haji Iqbal (PW2); and Nawab Jan (PW3) were declared hostile,
as a result of which the factum of motive behind the murder of
Zahida and Ishlam could not be established by the prosecution.
Notably, even these hostile witnesses (PWs 1 to 3) have not
disputed the relationship of Zahida and Ishlam with the accused
and the fact that they were residing with the accused in the same
house before they went missing. Be that as it may, both the
courts have ruled that other proved circumstances emanating
from the evidence produced by the prosecution, coupled with the
abject silence of the accused including having failed to offer any
explanation with regard to the incriminatory circumstances
referred to above, was sufficient to bring home the guilt against
them and no other conclusion could be deduced except that the
accused were responsible for the murder of Zahida and Ishlam.
They were closely related to the deceased (as Zahida was the
second wife of accused Akhtar (appellant No.3) and Ishlam was
the son born in wedlock between them; and appellant nos.1 and
2 were the step sons of Zahida and step brothers of Ishlam). All
of them were residing in the same house before Zahida and
Ishlam went missing for about two months. That fact was
reported by Shababul (PW7) to the police. The fact that
Shababul is on the payroll of the police cannot be the basis to
disregard the proved fact that Zahida and Ishlam had gone
missing for about two months before it was so reported to the
police. None of the appellants have either disowned their
relationship with Zahida and Ishlam or bothered to produce any
tittle of evidence in defence to show that Zahida and Ashlam were
still alive and residing elsewhere. This Court in Nika Ram Vs.
State of Himachal Pradesh9
, noted that the accused and
deceased (his wife) resided together and as the accused failed to
offer any cogent explanation about the circumstances in which
his wife died, it pointed towards his guilt and thus, the Court
deduced such inference. Suffice it to observe that the fact that
PW1, PW2 and PW3 became hostile and the prosecution could
not establish the factum of motive cannot be the basis to doubt
the correctness of the finding of guilt recorded by the two courts
against the accused on the basis of other proved circumstances
9
(1972) 2 SCC 80
including the confession of the accused No.1 about the murder of
Zahida Begum and Ishlam and more importantly, having
dumped the dead bodies in the septic tank in the backyard of
their house and to have led the police to that place from where
the two dead bodies, whose identity also has not been disputed,
came to be recovered, coupled with the medical evidence that the
cause of death of the two dead persons was due to the antemortem
injury caused on the neck resulting in their death due to
asphyxia and is a homicidal death.
12. After perusing the entire evidence and taking the totality of
the proved circumstances into account, we are in agreement with
the conclusion reached by the trial court, which came to be
affirmed by the High Court, regarding finding of guilt against
appellant No.1 – Asar Mohammed, who had confessed to the
police and also led the police party to the place where the dead
bodies were dumped. In Trimukh Moroti Kirkan Vs. State of
Maharashtra10, the Court explicated that if an offence takes
place inside the privacy of a house where the accused have all
the opportunity to plan and commit the offence at the time and
in circumstances of their choice, it will be extremely difficult for
the prosecution to lead evidence to establish the guilt of the
10
(2006) 10 SCC 681
accused if the strict principle of circumstantial evidence, is
insisted upon. The Court expounded thus:
“14. If an offence takes place inside the privacy of a house and
in such circumstances where the assailants have all the
opportunity to plan and commit the offence at the time and in
circumstances of their choice, it will be extremely difficult for
the prosecution to lead evidence to establish the guilt of the
accused if the strict principle of circumstantial evidence, as
noticed above, is insisted upon by the Courts. A Judge does
not preside over a criminal trial merely to see that no
innocent man is punished. A Judge also presides to see that
a guilty man does not escape. Both are public duties. (See
Stirland v. Director of Public Prosecution11 quoted with
approval by Arijit Pasayat, J. in State of Punjab v. Karnail
Singh12). The law does not enjoin a duty on the prosecution
to lead evidence of such character which is almost
impossible to be led or at any rate extremely difficult to be
led. The duty on the prosecution is to lead such evidence
which it is capable of leading, having regard to the facts
and circumstances of the case. Here it is necessary to keep
in mind Section 106 of the Evidence Act which says that
when any fact is especially within the knowledge of any
person, the burden of proving that fact is upon him.
Illustration (b) appended to this section throws some light
on the content and scope of this provision and it reads:
‘(b) A is charged with traveling on a railway without
ticket. The burden of proving that he had a ticket is on
him.’
15. Where an offence like murder is committed in secrecy
inside a house, the initial burden to establish the case
would undoubtedly be upon the prosecution, but the nature
and amount of evidence to be led by it to establish the
charge cannot be of the same degree as is required in other
cases of circumstantial evidence. The burden would be of a
comparatively lighter character. In view of Section 106 of
the Evidence Act there will be a corresponding burden on
the inmates of the house to give a cogent explanation as to
how the crime was committed. The inmates of the house
cannot get away by simply keeping quiet and offering no
explanation on the supposed premise that the burden to
establish its case lies entirely upon the prosecution and
there is no duty at all on an accused to offer any
explanation.
11 1994 AC 315 ; (1994) 2 AII ER 13 (HL)
12
(2003) 11 SCC 271
xxx xxx xxx
21. In a case based on circumstantial evidence where no
eye witness account is available, there is another principle
of law which must be kept in mind. The principle is that
when an incriminating circumstance is put to the accused
and the said accused either offers no explanation or offers
an explanation which is found to be untrue, then the same
becomes an additional link in the chain of circumstances to
make it complete. This view has been taken in a catena of
decisions of this Court. [See State of Tamil Nadu v. Rajendran13
(SCC para 6); State of U.P. v. Dr. Ravindra Prakash Mittal14 (SCC
para 39 : AIR para 40); State of Maharashtra v. Suresh15 (SCC
para 27); Ganesh Lal v. State of Rajasthan16 (SCC para 15) and
Gulab Chand v. State of M.P.17 (SCC para 4).]
22. Where an accused is alleged to have committed the murder
of his wife and the prosecution succeeds in leading evidence to
show that shortly before the commission of crime they were
seen together or the offence takes placed in the dwelling home
where the husband also normally resided, it has been
consistently held that if the accused does not offer any
explanation how the wife received injuries or offers an
explanation which is found to be false, it is a strong
circumstance which indicates that he is responsible for
commission of the crime. In Nika Ram v. State of Himachal
Pradesh18 it was observed that the fact that the accused alone
was with his wife in the house when she was murdered there
with 'khokhri' and the fact that the relations of the accused with
her were strained would, in the absence of any cogent
explanation by him, point to his guilt. In Ganeshlal v. State of
Maharashtra19 the appellant was prosecuted for the murder of
his wife which took place inside his house. It was observed that
when the death had occurred in his custody, the appellant is
under an obligation to give a plausible explanation for the cause
of her death in his statement under Section 313 Cr.P.C. The
mere denial of the prosecution case coupled with absence of
any explanation were held to be inconsistent with the
innocence of the accused, but consistent with the
hypothesis that the appellant is a prime accused in the
13
(1999) 8 SCC 679
14 (1992) 3 SCC 300 ; AIR 1992 SC 2045
15 (2000) 1 SCC 471
16 (2002) 1 SCC 731
17 (1995) 3 SCC 574
18
Supra @ Footnote 9
19
(1992) 3 SCC 106
commission of murder of his wife. In State of U.P. v. Dr.
Ravindra Prakash Mittal20 the medical evidence disclosed that
the wife died of strangulation during late night hours or early
morning and her body was set on fire after sprinkling kerosene.
The defence of the husband was that wife had committed
suicide by burning herself and that he was not at home at that
time. The letters written by the wife to her relatives showed that
the husband illtreated her and their relations were strained
and further the evidence showed that both of them were in one
room in the night. It was held that the chain of circumstances
was complete and it was the husband who committed the
murder of his wife by strangulation and accordingly this Court
reversed the judgment of the High Court acquitting the accused
and convicted him under Section 302 IPC. In State of Tamil
Nadu v. Rajendran21 the wife was found dead in a hut which
had caught fire. The evidence showed that the accused and his
wife were seen together in the hut at about 9.00 p.m. and the
accused came out in the morning through the roof when the
hut had caught fire. His explanation was that it was a case of
accidental fire which resulted in the death of his wife and a
daughter. The medical evidence showed that the wife died due
to asphyxia as a result of strangulation and not on account of
burn injuries. It was held that there cannot be any hesitation to
come to the conclusion that it was the accused (husband) who
was the perpetrator of the crime.”
(emphasis supplied)
13. It is a settled legal position that the facts need not be selfprobatory
and the word “fact” as contemplated in Section 27 of
the Evidence Act is not limited to “actual physical material
object”. The discovery of fact arises by reason of the fact that the
information given by the accused exhibited the knowledge or the
mental awareness of the informant as to its existence at a
particular place. It includes a discovery of an object, the place
from which it is produced and the knowledge of the accused as to
its existence. It will be useful to advert to the exposition in the
20
Supra @ Footnote 14
21 Supra @ Footnote 13
case of Vasanta Sampat Dupare v. State of Maharashtra22
, in
particular, paragraphs 23 to 29 thereof. The same read thus :
“23. While accepting or rejecting the factors of discovery, certain
principles are to be kept in mind. The Privy Council in Pulukuri
Kotayya v. King Emperor23 has held thus: (IA p. 77)
“… it is fallacious to treat the ‘fact discovered’ within
the section as equivalent to the object produced; the fact
discovered embraces the place from which the object is
produced and the knowledge of the accused as to this,
and the information given must relate distinctly to this
fact. Information as to past user, or the past history, of the
object produced is not related to its discovery in the setting
in which it is discovered. Information supplied by a person in
custody that ‘I will produce a knife concealed in the roof of
my house’ does not lead to the discovery of a knife; knives
were discovered many years ago. It leads to the discovery
of the fact that a knife is concealed in the house of the
informant to his knowledge, and if the knife is proved to
have been used in the commission of the offence, the
fact discovered is very relevant. But if to the statement the
words be added ‘with which I stabbed A’, these words are
inadmissible since they do not relate to the discovery of the
knife in the house of the informant.”
24. In Mohd. Inayatullah v. State of Maharashtra24, while
dealing with the ambit and scope of Section 27 of the Evidence
Act, the Court held that: (SCC pp. 83132, paras 1113)
“11. Although the interpretation and scope of Section 27 has
been the subject of several authoritative pronouncements, its
application to concrete cases is not always free from
difficulty. It will therefore be worthwhile at the outset, to
have a short and swift glance at the section and be reminded
of its requirements. The section says:
‘27. How much of information received from accused
may be proved.—Provided that, when any fact is deposed
to as discovered in consequence of information received
from a person accused of any offence, in the custody of a
police officer, so much of such information, whether it
amounts to a confession or not, as relates distinctly to the
fact thereby discovered, may be proved.’
12. The expression ‘provided that’ together with the
phrase ‘whether it amounts to a confession or not’ show that
the section is in the nature of an exception to the preceding
provisions particularly Sections 25 and 26. It is not
necessary in this case to consider if this section qualifies, to
22 (2015) 1 SCC 253
23 AIR 1947 PC 67
24 (1976) 1 SCC 828 ; (1976) 1 SCR 715
any extent, Section 24, also. It will be seen that the first
condition necessary for bringing this section into
operation is the discovery of a fact, albeit a relevant
fact, in consequence of the information received from a
person accused of an offence. The second is that the
discovery of such fact must be deposed to. The third is
that at the time of the receipt of the information the
accused must be in police custody. The last but the most
important condition is that only ‘so much of the
information’ as relates distinctly to the fact thereby
discovered is admissible. The rest of the information has
to be excluded. The word ‘distinctly’ means ‘directly’,
‘indubitably’, ‘strictly’, ‘unmistakably’. The word has been
advisedly used to limit and define the scope of the provable
information. The phrase ‘distinctly relates to the fact thereby
discovered’ is the linchpin of the provision. This phrase
refers to that part of the information supplied by the accused
which is the direct and immediate cause of the discovery. The
reason behind this partial lifting of the ban against
confessions and statements made to the police, is that if a
fact is actually discovered in consequence of information
given by the accused, it affords some guarantee of truth of
that part, and that part only, of the information which was
the clear, immediate and proximate cause of the discovery.
No such guarantee or assurance attaches to the rest of the
statement which may be indirectly or remotely related to the
fact discovered.
13. At one time it was held that the expression ‘fact
discovered’ in the section is restricted to a physical or
material fact which can be perceived by the senses, and that
it does not include a mental fact (see Sukhan v. Emperor25;
Ganu Chandra Kashid v. Emperor26). Now it is fairly settled
that the expression ‘fact discovered’ includes not only
the physical object produced, but also the place from
which it is produced and the knowledge of the accused
as to this (see Pulukuri Kotayya v. King Emperor27; Udai
Bhan v. State of U.P.28).”
(emphasis in original)
25. In Aftab Ahmad Anasari v. State of Uttaranchal29 after
referring to the decision in Pulukuri Kotayya30, the Court
adverted to seizure of clothes of the deceased which were
concealed by the accused. In that context, the Court opined
that (Aftab Ahmad Anasari case, SCC p. 596, para 40)
25
AIR 1929 Lah 344
26 AIR 1932 Bom 286
27 Supra @ Footnote 23
28 AIR 1962 SC 1116 ; (1962) 2 Cri LJ 251 ; 1962 Supp (2) SCR 830
29 (2010) 2 SCC 583
30
Supra @ Footnote 23
“40. … the part of the disclosure statement, namely, that the
appellant was ready to show the place where he had
concealed the clothes of the deceased is clearly admissible
under Section 27 of the Evidence Act because the same
relates distinctly to the discovery of the clothes of the
deceased from that very place. The contention that even if it
is assumed for the sake of argument that the clothes of the
deceased were recovered from the house of the sister of the
appellant pursuant to the voluntary disclosure statement
made by the appellant, the prosecution has failed to prove
that the clothes so recovered belonged to the deceased and
therefore, the recovery of the clothes should not be treated
as an incriminating circumstance, is devoid of merits.”
26. In State of Maharashtra v. Damu31 it has been held as
follows: (SCC p.283, para 35)
“35. … It is now well settled that recovery of an object is not
discovery of a fact as envisaged in [Section 27 of the
Evidence Act, 1872]. The decision of the Privy Council in
Pulukuri Kotayya v. King Emperor32 is the most quoted
authority for supporting the interpretation that the ‘fact
discovered’ envisaged in the section embraces the place from
which the object was produced, the knowledge of the
accused as to it, but the information given must relate
distinctly to that effect.”
The similar principle has been laid down in State of
Maharashtra v. Suresh33
, State of Punjab v. Gurnam Kaur34
,
Aftab Ahmad Anasari v. State of Uttaranchal35
, Bhagwan Dass v.
State (NCT of Delhi)36
, Manu Sharma v. State (NCT of Delhi)37 and
Rumi Bora Dutta v. State of Assam38
.
27. In the case at hand, as is perceptible, the recovery
had taken place when the appellant was accused of an
offence, he was in custody of a police officer, the recovery
had taken place in consequence of information furnished by
him and the panch witnesses have supported the seizure
and nothing has been brought on record to discredit their
testimony.
28. Additionally, another aspect can also be taken note of.
The fact that the appellant had led the police officer to find out
the spot where the crime was committed, and the tap where he
washed the clothes eloquently speak of his conduct as the same
is admissible in evidence to establish his conduct. In this
context we may refer with profit to the authority in Prakash
31 (2000) 6 SCC 269
32 Supra @ Footnote 23
33 (2000) 1 SCC 471
34 (2009) 11 SCC 225
35 (2010) 2 SCC 583
36
(2011) 6 SCC 396
37
(2010) 6 SCC 1
38
(2013) 7 SCC 417
Chand v. State (Delhi Admn.)39 wherein the Court after referring
to the decision in H.P. Admn. v. Om Prakash40 held thus:
(Prakash Chand case, SCC p.95, para 8)
“8. … There is a clear distinction between the conduct of
a person against whom an offence is alleged, which is
admissible under Section 8 of the Evidence Act, if such
conduct is influenced by any fact in issue or relevant
fact and the statement made to a police officer in the
course of an investigation which is hit by Section 162 of
the Criminal Procedure Code. What is excluded by Section
162 of the Criminal Procedure Code is the statement made to
a police officer in the course of investigation and not the
evidence relating to the conduct of an accused person (not
amounting to a statement) when confronted or questioned by
a police officer during the course of an investigation. For
example, the evidence of the circumstance, simpliciter, that
an accused person led a police officer and pointed out the
place where stolen articles or weapons which might have
been used in the commission of the offence were found
hidden, would be admissible as conduct, under Section 8 of
the Evidence Act, irrespective of whether any statement by
the accused contemporaneously with or antecedent to such
conduct falls within the purview of Section 27 of the
Evidence Act.”
29. In A.N. Venkatesh v. State of Karnataka41 it has been ruled
that: (SCC p.721, para9)
“9. By virtue of Section 8 of the Evidence Act, the conduct of
the accused person is relevant, if such conduct influences or
is influenced by any fact in issue or relevant fact. The
evidence of the circumstance, simpliciter, that the
accused pointed out to the police officer, the place
where the dead body of the kidnapped boy was found and
on their pointing out the body was exhumed, would be
admissible as conduct under Section 8 irrespective of
the fact whether the statement made by the accused
contemporaneously with or antecedent to such conduct
falls within the purview of Section 27 or not as held by
this Court in Prakash Chand v. State (Delhi Admn.).
Even if we hold that the disclosure statement made by
the appellantsaccused (Exts. P15 and P16) is not
admissible under Section 27 of the Evidence Act, still it
is relevant under Section 8. The evidence of the
investigating officer and PWs 1, 2, 7 and PW 4 the spot
mahazar witness that the accused had taken them to the
spot and pointed out the place where the dead body was
buried, is an admissible piece of evidence under Section 8 as
39
(1979) 3 SCC 90
40
(1972) 1 SCC 249
41
(2005) 7 SCC 714
the conduct of the accused. Presence of A1 and A2 at a
place where ransom demand was to be fulfilled and their
action of fleeing on spotting the police party is a
relevant circumstance and are admissible under Section
8 of the Evidence Act.”
(emphasis supplied)
14. Applying the principle expounded by this Court, we have no
hesitation in affirming the finding of guilt recorded against
appellant No.1 – Asar Mohammed.
15. The question is whether the same evidence or proved
circumstances can be used against the other two appellants,
namely, Asraf Mohammed and Akhtar Mohammad.
Indisputably, except the confession of the coaccused – Asar
Mohammed (appellant No.1), the prosecution has not produced
any independent substantive evidence to even remotely suggest
that appellant Nos.2 and 3 were involved in committing the
murder of Zahida and Ishlam. By now, it is well settled that
confession of the coaccused by itself cannot be the basis to
proceed against the other accused unless something more is
produced to indicate their involvement in the commission of the
crime. This Court in Kashmira Singh v. State of Madhya
Pradesh42
, relying upon the decision of the Privy Council in
Bhuboni Sahu v. R.43
, Periaswami Moopan, In re44 as well as
42 1952 SCR 526
43 (194849) 76 IA 147
44 ILR (1931) 54 Mad 75
in Emperor v. Lalit Mohan Chuckerbutty45
, has explicated the
efficacy of confession of an accused person and whether it can be
used against the coaccused. The exposition in Kashmira Singh
has been approved by the Constitution Bench of this Court in
Haricharan Kurmi v. State of Bihar46
, in particular paragraph
12 which reads thus :
“12. As we have already indicated, this question has been
considered on several occasions by judicial decisions and it has
been consistently held that a confession cannot be treated as
evidence which is substantive evidence against a coaccused
person. In dealing with a criminal case where the
prosecution relies upon the confession of one accused
person against another accused person, the proper
approach to adopt is to consider the other evidence against
such an accused person, and if the said evidence appears to
be satisfactory and the court is inclined to hold that the
said evidence may sustain the charge framed against the
said accused person, the court turns to the confession with
a view to assure itself that the conclusion which it is
inclined to draw from the other evidence is right. As was
observed by Sir Lawrence Jenkins in Emperor v. Lalit Mohan
Chuckerbutty a confession can only be used to ‘lend assurance
to other evidence against a coaccused’. In Periaswami Moopan,
In re Reilly, J., observed that the provision of Section 30 goes
not further than this :
‘…where there is evidence against the coaccused
sufficient, if believed, to support his conviction, then
the kind of confession described in Section 30 may be
thrown into the scale as an additional reason for
believing that evidence.’
In Bhuboni Sahu v. R. the Privy Council has expressed the same
view. Sir John Beaumont who spoke for the Board, observed
that:
‘…A confession of a coaccused is obviously evidence of a
very weak type. It does not indeed come within the definition
of ‘evidence’ contained in Section 3 of the Evidence Act. It is
not required to be given on oath, nor in the presence of the
accused, and it cannot be tested by crossexamination. It is
45 ILR (1911) 38 Cal 559
46 (1964) 6 SCR 623 ; AIR 1964 SC 1184
a much weaker type of evidence than the evidence of an
approver, which is not subject to any of those infirmities.
Section 30, however, provides that the court may act;
but the section does not say that the confession is to
amount to proof. Clearly there must be other evidence.
The confession is only one element in the consideration
of all the facts proved in the case; it can be put into the
scale and weighed with the other evidence.’
It would be noticed that as a result of the provisions contained
in Section 30, the confession has no doubt to be regarded as
amounting to evidence in a general way, because whatever is
considered by the court is evidence; circumstances which are
considered by the court as well as probabilities do amount to
evidence in that generic sense. Thus, though confession may
be regarded as evidence in that generic sense because of the
provisions of Section 30, the fact remains that it is not evidence
as defined by Section 3 of the Act. The result, therefore, is
that in dealing with a case against an accused person, the
court cannot start with the confession of a coaccused after
it has formed its opinion with regard to the quality and
effect of the said evidence, then it is permissible to turn to
the confession in order to receive assurance to the
conclusion of guilt which the judicial mind is about to
reach on the said other evidence. That, briefly stated, is the
effect of the provisions contained in Section 30. The same view
has been expressed by this Court in Kashmira Singh v. State of
M.P. where the decision of the Privy Council in Bhuboni Sahu
case has been cited with approval.”
(emphasis supplied)
16. In view of the above, it is not permissible to proceed against
appellant nos.2 and 3 solely on the basis of the confession of
appellant No.1 made before the police, even if the relevant part of
the confession is admissible and has been duly proved. As no
substantive evidence is forthcoming to show the involvement of
appellant nos.2 and 3 for having caused the murder of Zahida
and Ishlam, it is not open to convict them for offence punishable
under Section 302, IPC. This is also because the charge, as has
been framed, is simpliciter for offence under Section 302 and not
for offence punishable under Section 302 read with Section 34 of
IPC or Section 302 read with Section 120B of IPC. No evidence
has been produced by the prosecution in this regard.
Resultantly, the finding of guilt albeit concurrently recorded by
the two courts against appellant nos.2 and 3 for offence
punishable under Section 302 IPC cannot be sustained on facts
or in law. These appellants, therefore, will have to be acquitted
in connection with offence punishable under Section 302 IPC.
17. The next question is whether appellant Nos.2 and 3 can be
held guilty for offence punishable under Section 201 IPC. The
fact that appellant nos.2 and 3 cannot be convicted for offence
punishable under Section 302 IPC does not extricate them from
the offence under Section 201 IPC. We say so because the
proved circumstances discerned from the record leave no manner
of doubt that Zahida and Ishlam were residing along with the
appellants in the same house. Further, Zahida was the second
wife of appellant No.3 and Ishlam was none other than the son of
appellant No.3 born in wedlock with Zahida. Zahida was the
step mother of appellant Nos.1 and 2 and Ishlam was their step
brother. This relationship has not been disputed. It is also an
established fact that Zahida and Ishlam had suddenly gone
missing for over two months. Obviously, no efforts were made by
appellant nos.2 and 3 to trace Zahida and Ishlam nor did they
think it necessary to report that fact to the local police. This
indeed cannot be a natural behavior or conduct of appellant
No.3, the husband of Zahida and father of minor son Ishlam.
Further, appellant nos.2 and 3 have not challenged the identity
of two dead bodies found from the septic tank in the backyard of
their house at the instance of appellant No.1 – Asar Mohammed.
No explanation whatsoever has been offered by them as to why
they did not report about the sudden disappearance of Zahida
and Ishlam (until their bodies were recovered from the septic
tank in the backyard of their house after two months). The
concomitant is that appellant Nos.2 and 3 had knowledge that
Zahida and Ishlam had been murdered and their dead bodies
were dumped in the septic tank in the backyard of their house
and yet, they did not disclose that fact with an intention to
screen appellant No.1 – Asar Mohammed, the offender, from legal
punishment. In other words, even though they cannot be made
liable for the murder of Zahida and Ishlam for want of legal
evidence in that regard, they would certainly be guilty of having
committed offence under Section 201 IPC as established from the
proved circumstances coupled with their abject failure to offer
any explanation, much less cogent explanation, about their
conduct. The inevitable and legitimate conclusion to be deduced
is that they are guilty of offence punishable under Section 201
IPC for which they have been rightly convicted and sentenced by
the trial court and which opinion of the trial court has been
affirmed by the High Court. As a result, the appeal filed by
appellant nos.2 and 3 would partly succeed only to the extent of
acquitting them for offence punishable under Section 302 IPC.
18. In view of the above, the appeal filed by appellant No.1 –
Asar Mohammed is dismissed. Whereas, the appeal filed by
appellant Nos.2 and 3 – Asraf Mohammed and Akhtar,
respectively, is partly allowed by setting aside the conviction and
sentence recorded against them for offence punishable under
Section 302 IPC but the conviction and sentence for offence
punishable under Section 201 IPC against them is upheld.
Ordered accordingly.
…………………………..….J.
(A.M. Khanwilkar)
…………………………..….J.
(L. Nageswara Rao)
New Delhi;
October 24, 2018.
advocatemmmohan
- advocatemmmohan
- since 1985 practicing as advocate in both civil & criminal laws
Thursday, October 25, 2018
appellant Nos.2 and 3 had knowledge that Zahida and Ishlam had been murdered and their dead bodies were dumped in the septic tank in the backyard of their house and yet, they did not disclose that fact with an intention to screen appellant No.1 – Asar Mohammed, the offender, from legal punishment. In other words, even though they cannot be made liable for the murder of Zahida and Ishlam for want of legal evidence in that regard, they would certainly be guilty of having committed offence under Section 201 IPC as established from the proved circumstances coupled with their abject failure to offer any explanation, much less cogent explanation, about their conduct
